Prosecutor got sick in the middle of trial and mistrial was declared – does double jeopardy prevent a new trial?

Facts

In this trial for domestic battery in the middle of trial the prosecutor went home ill.

The next day other prosecutors showed up to tell the judge she was sick and was not in court. They wanted to continue the trial for 24 hours to see if she’d be in court the next day.

Defendant objected to the continuance and wanted another prosecutor to take over the trial.

The other prosecutors said they could not take over.

The judge denied the continuance and ordered a mistrial.

Issue

Defendant then filed a motion to dismiss based on double jeopardy which was denied.

On the motion the attorney was better and said she was out for more than 24 hours.

The court noted its concern that

“[t]he jury, which had already been here for all of one day and part of the morning of a second day, would have had to sit doing nothing for at least two more hours on top of the two hours or so they had already been present the second day without ever even having come into the courtroom.”

On appeal defendant says there was no manifest necessity for declaring a mistrial, because other options were available.

Double Jeopardy

The fifth amendment to the United States Constitution provides that no person shall

“be subject for the same offence to be twice put in jeopardy of life or limb.”

(1) a second prosecution for the same offense following acquittal,
(2) a second prosecution for the same offense following conviction, and
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

Embedded in these ideas is the notion that the State, with all of its resources, should not be allowed multiple attempts to convict a person of an alleged offense.

Rules

The protection against double jeopardy attaches after the jury is selected and sworn. See 720 ILCS 5/3-4(a)(3):

A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if that former prosecution: was terminated improperly after the jury was impaneled and sworn…

(1) A defendant who requests or consents to a mistrial is presumed to have deliberately elected to forgo a decision on his or her guilt or innocence before the jury seated at that time.

(2) However, where the court, acting without the defendant’s consent, declares a mistrial, the court necessarily deprives the defendant of his valued right to have a particular jury decide his fate.

This does not necessarily preclude a second trial, because a defendant’s right to have his trial completed by a particular jury must in some instances yield to the public’s interest in fair trials.

Retrial Possible Only If…

When the court declares a mistrial without the defendant’s consent, the State should be allowed to retry the defendant only if there was a manifest necessity for declaring the mistrial.

Accordingly, reprosecution of a defendant following the declaration of a mistrial is constitutionally permissible if

(1) the mistrial was attributable to the defendant by virtue of his motion or consent; or
(2) the mistrial was warranted by “manifest necessity”.

Manifest Necessity

Essentially, in deciding if a manifest necessity exists, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that “particular tribunal,” against the strength of the justification for declaring a mistrial.

On review, we may consider several factors, including whether :

(1) the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was the product of events over which the participants lacked control;
(2) the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case;
(3) the difficulty could have been “cured” by an alternative that would have preserved the trial’s fairness;
(4) the trial judge actually considered the alternatives to a mistrial;
(5) a subsequent conviction would be subject to reversal on appeal;
(6) the trial judge acted in the heat of the trial confrontation;
(7) the trial judge’s decision rested on an evaluation of the demeanor of the participants, the “atmosphere” of the trial, or any other factors that similarly are not amenable to strict appellate review;
(8) the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice;
(9) the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated);
(10) the jurors had heard enough of the case to formulate some tentative opinions;
(11) the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence; and
(12) the composition of the jury was unusual.

Analysis

The court thus did consider the possible alternatives and concluded that they were not practical.

Defendant seems to argue that the court did not devote enough time to considering the alternatives, but we are aware of no case prescribing a particular amount of time that must be devoted to the subject.

This was not a hasty decision.

Now he says the court should have granted a short continuance. During the trial he objected to any continuance, even for a few hours, but now argues on appeal that granting a continuance is precisely what the trial court should have done.

Defendant is not entitled to simply change positions this way. Defendant objected to both a continuance and a mistrial, apparently taking the position that the only viable option was for DeRue or Tyler to take over the case immediately, without any preparation whatsoever.

We are aware of no case, and defendant cites none, holding that the double-jeopardy clause entitles a defendant to force an unprepared prosecutor to take over the case immediately.

Thus, the jury, which was told that the case was expected to last one or two days and which had already been in court for two days, would have had to return the following day, with no guarantee that the State would be ready to proceed.

We do not know whether the court, the prosecutors, or even defense counsel had other matters on their schedules that would have precluded resuming the trial. Thus, we cannot say based on this record that the court abused its discretion. Affirmed and remanded for the case to continue.